UC Berkeley Web Feature

Jesse
H. Choper, the Earl Warren Professor of Public
Law at UC Berkeley's Boalt Hall School of Law.(Bonnie
Powell photo)

Supreme Court sidesteps Pledge of Allegiance
issue, but the legal question will resurface predicts law
school professor

Public Affairs | 14
June 2004

Michael Newdow arguing his
case in February moot-court
proceeding held at Boalt Hall. (Photo
courtesy of American Constitution Society)

BERKELEY – A parent's
legal effort to have the the words "under God" removed
from the Pledge of Allegiance was rejected by the U.S.
Supreme Court on Monday. The court did not decide the constitutional
question of whether the phrase violates the constitutional
separation of church and state, instead ruling that Californian
Michael Newdow did not have legal standing to
bring the challenge on behalf of his daughter. The court
said that Newdow did not
have
legal custody
of his
9-year-old girl at the time he filed his lawsuit.

The Court's decision left open the possibility of future
challenges. The 8-0 decision overturned a
ruling by the San Francisco-based 9th U.S. Circuit Court
of Appeals. The appeals court ruled in June 2002 that requiring
the pledge to be recited
as written is unconstitutional because the words "under
God" are tantamount to an endorsement of religion and thus
violate the constitutional separation of church and state.

"This is not a surprising decision," said law
professor Jesse Choper of the UC Berkeley School of Law
(Boalt Hall). "They say discretion is the
better part of valor and that's what the court did: It
exercised
its
discretion and effectively said we're going to avoid resolving
this controversial issue today."

Choper believes the potential public disapproval of a
ruling on the merits of this case was at least some factor
in the high court's decision. However, he said, the technical
issue of Michael Newdow's standing to represent his daughter
is a valid one.

"There's a serious issue here," he said. "The
mother says she wants her daughter to recite the Pledge.
The mother says the daughter wants to recite the Pledge.
The father does not want her to recite the Pledge. What
you do when the two sides conflict is complicated."

The chances are very good that this issue will be brought
before the high court again, Choper said, perhaps in a
case in which both parents and the child all are against
reciting the Pledge. Choper predicts that the current court
would accept the case and would likely uphold the Pledge,
considering it more of a ceremonial exercise than a religious
one.

The American Constitution Society at UC Berkeley's Boalt
Hall School of Law held a moot court hearing on February
19 in which Newdow argued his case against Hastings College
of Law professor Vikram Amar, representing Elk Grove. A webcast of
Newdow and Amar's oral arguments is online. A majority
of the distinguished panel of judges agreed with Newdow's
interpretation of the law and their discussion
of the case also can be viewed via webcast.